"The fact that counteraction now takes place only post expropriation will make it extremely difficult to oppose the state because, as we all know, these cases can be drawn out for years, during which time the owner could be without a home, a factory or without an income from his property," said Tony Clarke, managing director of Rawson Properties.
Drawing attention to a Milton Matsemela Attorneys' newsletter that discusses the bill, Clarke said that he agrees with the author that the individual's rights in South Africa, which should under our constitution usually take precedence over those of the state, appear now to have been sidelined.
Clarke said the background to the new bill is that the government always has had the right to expropriate private property provided that it was needed for a "public purpose" and provided that the state paid a genuine market-related compensation negotiated transparently with all parties.
"In practice, the words 'public purpose' were usually taken to mean 'public works', e.g. a road, a pipeline or a school. Furthermore, those calculating the compensation had to take into account an exceptionally wide range of factors such as the history of the property, the length and time that the current owner or his family had possessed it, the improvements carried out during that time, the return the state could achieve on it and the sentimental or emotional attachment the owners might have to it. In addition, the state was obliged to take 'reasonable legislative or other measures' to help the dispossessed owner to find an alternative property 'on an equitable basis' if he required it."
Under the new Act, said Clarke, the words 'public purpose' have been replaced by 'in the public interest' and many lawyers are undecided as to how greatly this could empower the state. Nor, added Clarke, are they sure that the new clause relating to the 'market value' being paid for the property will carry much weight because, again, this value can only be disputed after the expropriation.
"This is particularly worrying, because the value will be determined solely by the expropriators without, it seems, reference to independent consultants or valuers or the current owner."
Clarke said that the impression that many lawyers now have is that the state is seeking seriously to limit the courts' ability to delay or prevent expropriations.
Quoting from the Milton Matsemela document, Clarke said,
"By excluding the courts' power to determine whether expropriation is truly in the public interest or not, the government has effectively, in a disturbingly immoral fashion, exploited the vagueness of the constitution on these matters and have given themselves virtual carte blanche."
Again referring to the Milton Matsemela report, Clarke added that because the state still has to pay "real money" for any expropriation, they would be very limited in their ability to carry out these on a large scale. The bill is, therefore, likely to be applied almost exclusively in the cases of land reform.
"It seems clear that, unlike certain countries to the north of South Africa, the ANC are highly aware of the value of direct foreign investment and the benefits of being viewed globally as a capitalist economy. It is highly unlikely, therefore, that property rights will be seriously affected by this new bill, despite its apparently increased powers," said Clarke.
Public hearings pertaining to the bill will be held on the following dates:
(Note: Some final times and venues are not yet available. Please contact Akhona Busakwe on 021 403 3859 or 083 709 8495 to confirm these.)
Gauteng
28 May
Unconfirmed
Randfontein (venue not confirmed)
Mpumalanga
29 - 30 May
Unconfirmed
Hlanzeni (Edwaleni & Mbombela) & Nkomazi (Donga Block A)
Free State
2 - 3 June
Unconfirmed
Qwaqwa (Thabo Mofutsanyane Municipality) & Bloemfontein (venue not
confirmed)
Northern Cape
4 - 5 June
Unconfirmed
Kimberley & Kuruman (venue not confirmed)
North West
6 June
Unconfirmed
Buphirima or Ventersdorp (venue not confirmed)
Eastern Cape
9 - 10 June
Unconfirmed
Queenstown & Wild Coast (venue not confirmed)
KwaZulu Natal
11 - 13 June
Unconfirmed
Umkhanyakude, Pongola & Newcastle (venue not confirmed)
National
17 - 18 June
10:00 - 16:00
Parliament
For more information contact Tony Clarke on 021 658 7100 or send an email.
Readers' Comments
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Thank you for the interesting yet scary article relating to the new Expropriation Bill.
I am of the opinion that this new Bill may be a strong arm "hidden agenda" tactic giving Government all the powers to decide what is or isn't fair and market related. Why else would this new Bill be proposed? I do understand that certain expropriation situations, particularly amongst our farming community, need to be resolved a lot faster than they have been up to now. If, however, you and I are left with little or no rights with which to fight government decisions then one might as well abandon hope and pray that someone at government will at least lend a sympathetic ear during the expropriation process.
My father-in-law is currently in a predicament in that they were offered R4,5m for a 1,600 hectares farm bordering the highway in Heidelberg Gauteng ie. 28 cents per square meter! No land in South Africa is worth that little. To arbitrate that offer is now costing thousands requiring the appointment of professionals such as advocates and the like. That's costs that any of us could do without. What happens if, at the time, you do not have the cash resources to take on the Government? No professional works at risk in matters of this nature especially involving the state.
I believe that to minimise our concerns relating to this new Bill guarantees should be put in place whereby up to four (4) valuations (including Governments one) are averaged to arrive at fair value. Furthermore, failing all else an independent panel, similar to the Housing Tribunal in the residential market, should be permitted to hear the matter and cast a binding opinion. In this manner, then perhaps, one could rest assured that the process will be fair from the point that the views of a number of professionals were taken into consideration. Anything less is pure dictatorship. - Tony Cheia
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